Snoop Dogg Sued By Famed Jazz Artist For Sampling

from the fo-shizzle-my-copyrizzle dept

One of the key things that you recognize as you look more closely at how intellectual property is used, the reality is often quite different than the "theory." The theory is that intellectual property is most important for those up and coming artists who need the "protection" to have the incentive to create and to build up support. The reality is often that the up and comers ignore copyright law because it makes little sense to them and often gets in the way of what they're trying to do. Those who rely on copyright as a crutch are often those who have already been successful, and are looking for ways to squeeze more out of their previous success (and to slow down upstarts and competitors). We recently talked about how up-and-coming jazz musicians were struggling because copyright law was getting in the way of their ability to build on the works of others -- as their jazz forefathers had done from the beginning of the jazz era forward.

And now it appears that some jazz greats, who relied on just the same ability to build on the works of others, are now using copyright law to try to stop other artists from building on their own works. Michael Henderson, a bandmate of Miles Davis, and an incredibly influential jazz musician is now suing Snoop Dogg for sampling.

The legal battles over sampling have gone on for years, with some really, really terrible rulings on the books (basically, look for any lawsuit involving Bridgeport). Notably, Henderson appears to have brought this lawsuit in the 6th Circuit, where the Bridgeport v. Dimension Films bizarrely declared that there was no "de minimis" defense to sampling music. It would be nice to see a court decision recognizing that sampling isn't illegal, but we're unlikely to see that any time soon...

Um...

the difference between a sample and playing someone elses song yourself is night and day. snoop could have used the same source song, hired musicians to play it, and been in the same clear as the jazz musician. but by using the other musicians work product, which is covered differently from the underlying music, he is in violation.

it is the jazz musicians playing that is at issue, not what he was playing. a subtle difference apparently lost on techdirt.

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no. if snoop played the music himself (aka, actually picked up an instrument and played) it would be between him and the original song writer. because he sampled someone elses work, it is a question not of the song, but of the performance.

Sampling is direct copying and requires no innovation. The innovation in mixing it with other sounds is orthogonal to the undisputed source of the copied sample.

Playing your own interpretation of someone else's music is innovation. Even playing it in exactly the same style takes some talent and personal effort and is closer to a hand-drawn facsimile than a direct copy.

Referencing another's music in Jazz usually results in a finely tailored pastiche worthy of its own accord, whereas in my experience a preponderance of the current sample-based popular fare is a cut-and-paste hodgepodge, resembling a ransom note more than a patchwork quilt.

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"Sampling is direct copying and requires no innovation" is patently false, as you immediately managed to point out in your next sentence.

Using someone else's work as a baseline for your own is, as you also point out, a common practice. The means and methods by which people do so changes through the years... but until you specifically are able to produce a sampled track of the same quality or higher than that created by Snoop Dogg, (a simple request if, as you claim, there is no creativity or innovation involved) I suggest you find a new rhetorical shield to cower behind.

I look forward to your youtube link. And before you pull the "but that would be illegal" defense, please note that such a track would be created for purposes that fall well within the Fair Use criteria.

It's not patently false. Taking an exact copy of something requires no innovation. I pointed out in the next sentence that the lack of innovation in taking an exact copy of something is orthogonal to the innovation which I recognize is required to then mix that copy with something else. I agree that the mixing takes innovation but it doesn't detract from the fact that the mix contains someone else's copied original content. By orthogonal I mean that the one fact has no impact on the veracity of the other fact.

Based on your misunderstanding of my statement, your subsequent paragraph is moot in that we don't disagree on the point that creating a new work from original and/or copied sources requires innovation.

I'm not arguing the current legality of it, I'm pointing out the difference between innovation and copying. I'm fully aware of fair use, I'm just trying to show how the comparison of the Jazz culture of reusing music to the sampling culture is inexact enough that it cannot be a useful analogy to support legal arguments.

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I'm just trying to show how the comparison of the Jazz culture of reusing music to the sampling culture is inexact enough that it cannot be a useful analogy to support legal arguments.

Jazz musicians frequently take, or "sample", if you will, pieces from other jazz musicians without modification and your only defense is that since they do it by playing an instrument themselves, it's "different" enough?

By your logic, a really good cover band should be just fine playing anything they want of say, Rolling Stones, because it's a "facsimile" and not really a copy.

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no, jazz musicians play their instruments, and do not "sample" anything. they do play melodies that sometimes combine other songs together, but they are not sampling anyone elses performance, the performance is all their own.

it is very different, although it is perhaps something to subtle for the average techdirt employee to figure out.

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"the lack of innovation in taking an exact copy of something"

As with many anti-sampling people, you assume that this is all that happens. While this may be true of artists that sample entire tracks without alteration (I'm unfamiliar with the tracks in the article so can't comment on those), there is great creativity in sampling.

From early Prodigy (the extremely popular in my native UK Out Of Space comes to mind), to records like De la Soul's 3 Feet high And Rising and Beastie Boys' Paul's Boutique and many other recent works - that mix many samples into something new with little recognisable from the original - there is certainly creativity. I mentioned some older records there, but there are hundreds if not thousands of modern records featuring samples that do a hell of a lot more than just copy something else wholesale.

There's also a great argument that without sampling, for example, some of the great jazz masters would have been left unknown by non-jazz audiences who were introduced to the genre through Gang Starr/Guru's sampling of their works (or other genres through Snoop's sampling of George Clinton, or even Kanye's sampling of Daft Punk).

"I'm just trying to show how the comparison of the Jazz culture of reusing music to the sampling culture is inexact enough that it cannot be a useful analogy to support legal arguments."

I hope you'll forgive me for pointing out that this is 100% subjective, and your tastes are not the be all and end all our culture.

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Anyone who has created a collage: http://en.wikipedia.org/wiki/Collage knows that there can be an incredible amount of creativity involved in the process. In fact, unless you have created new sounds, any piece of music you 'create' is simply a different grouping of clearly established sounds.

What we are talking about here is not whether or not it is okay to re-use a portion of a song when creating another one, it is HOW MUCH of a song you can re-use. Apparently, you can string together an infinite number of single notes copied from someone else. How about 2 note combinations?

Many artists seem to be narrowly focusing their definition of creativity. That is incredibly stifling to the creative arts and from the perspective of society, pretty bad. If artists are being dissuaded from new forms of expression that are considered 'uncreative', there will be little real ground-breaking.

The world changes incrementally - by building on it's past. To expect nothing but grands leaps of change is a little like telling inventors that they cannot create any more ground transportation because we have the horse and buggy. Now we have to go to flying machines. The car wasn't ground breaking - someone took a buggy and stuck in an engine - two things that already existed - and it clearly moved our society forward.

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Hi Mike;

No, I'm not saying thru-you requires no innovation. It requires tons of innovation. I had hoped I was being clear that the composition of things is innovation. My personal opinion as to the relative merit of different art forms, while expressed in my original reply, is not my central point.

What I am trying to explore is that the creators of the original works that are remixed into this work, having had their performance included in it, might be said to be performers in the context of the new work in a way that is not true where a new work is created from entirely newly performed material.

There is an ownership of the original work which includes the performer, the composer, the producer and others. One of the established outcomes of this is that somewhere between one and all of those participants are entitled to credit and possibly compensation when their work is reused.

Any new mixed work contains innovation by the original participants, and innovation by the new participants. The remixer, whose role may include any or all of composition, production and artistic performance, is now one of a number of players involved.

Back to the Jazz representation of an existing work, when a musician reinterprets the music, whether or not he/she makes it sound exactly the same, the contribution by the previous performer and producer are not directly included in the new work. I agree that there is moral value in positing that George Martin's production or Ravi Shankar's accompaniment on a recording materially influences subsequent interpretations, but their involvement is no longer in the DNA of the output, and any legal interpretations will take note of that.

Sure, I'm being pedantic, but I'm hoping a dispassionate dissection of the issues can lead to some clarity.

Perhaps the notion of a traceable genealogical thread from one work to another could be an analogy that helps to separate out what credit people get from derivative works, sampled or unsampled.

What's the difference?

I've never understood why sampling gets a free pass from so many people who might not feel the same way about similar situations.

If I'm making a big-budget movie and want to include a cool scene of a tidal wave impacting a city, and instead of writing/shooting the scene myself I just decided to splice in a scene from "2012" or "Deep Impact", I'd get my ass sued off.

Likewise, if I'm writing a novel and I copy a page-long description of the ocean from one of Hemingway's books without crediting him in any way, I think that's pretty plainly wrong. We even have a word for it - "plagiarism".

So what makes sampling different? Is it a cultural difference because we're talking about musicians and not directors/authors?

Re: Re: What's the difference?

I guess I'm not seeing the difference. You say he's not trying to pass someone else's work off as his own, but when I hear a significant chunk of a well-known song spliced into another artist's work with no credit given to the original artist, something about that doesn't seem right.

I remember hearing a good-sized part of ABBA's "Gimme Gimme Gimme" looped and used as the background for essentially all of Madonna's "Hung Up on You", and I don't think ABBA was credited on the liner notes. Was the listener supposed to just *know* that it was a sample and not Madonna's original work?

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You're not seeing the difference because your analogy is wrong. It is correct that using a tidal wave from another movie in your own as a replacement for creating said tidal wave yourself should require payment to whomever created the first movie. BUT

If you create a video montage wherein you cut together found footage from existing work, including that same tidal wave, that's transformative and you're good to go.

Similarly, it's bad form to rip the drumbeat from another song in lieu of hiring your own drummer. BUT sampling music in a way that changes the intent is also transformative. Or at least it's supposed to be.

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Eugene - thanks for the reply, that made a lot of sense. I missed the whole "transformative" aspect of sampling that was missing from my director/author examples.

I'm still not sure how I feel about taking a recognizable portion of one song and using it as a significant part of another song without credit (the Madonna/ABBA example).

With much shorter fragments, I don't have as much of a problem with it. For instance, I've heard the laugh from Yaz' "Situation" used in other songs. And I've some of the noises from Art of Noise's "Close to the Edit" recently as well (funny that I remember the sample but not the song it was used in.) But in those cases, they're used almost more like sound effects rather than part of the melody of the song.

Re: Re: What's the difference?

if i combine the neat tidal wave with perhaps a nice explosion from the terminator movies and perhaps bogart saying "frankly scarlett..." did i just create a new movie? nope, i just copied someone elses work and that is that.

snoop is using someone elses performance and attempting to pass it off as part of his own. he should have just hired a musician and had them play the part instead, then it would be his own.

Fool!

Snoop dogg is apparently badass enough to stand in for both Luke Skywalker AND Obi Wan Kenobi in a Mos Eisley backwater pub. While childish and uncoordinated, his lightsaber skills also appear to be effective if not graceful and obviously lacking the decades of training a true Jedi would have.

Also, sampling makes me sick sometimes. That frigging Kashmir remix almost made me drive my car into oncoming traffic when it came on. Sometimes, its so bad, it should be illegal. I have not heard the song, but maybe this is offensive to the very nature of jazz by having snoop force himself on it.

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Whether sampling is creative or just plain copying is subjective, artistic and arguable which is why it is such a grey area. For example, I am a singer and guitarist, musical purist and a a general rule, hate sampling and class it as taking no talent and paramount to stealing, not so much the notes but the creative energy it should take to produce art. On the other hand, samples can be used really well. For example Hits from the Bong by Cypruss Hill uses Song of a Preacher Mans riff in an interesting way. I have also seen at university a classmate of mine do some really really cool stuff with samples, both that of songs and incorporated with live samples and recordings mixed live on stage. That is incredibly complex and hard to do well.

paying attention.

"As with many anti-sampling people, you assume that this is all that happens."

Hello, MacFly?!?! Are you even reading the same thread?

I'm not anti-sampling. I've iterated and reiterated that I fully recognize the innovation in making something creative from samples, despite the many extant examples of sampling done with marginal transformation or added value.

What I've been trying to do is expand the conversation to fill the chasm of reality that seems lost in such discussions and lies between the diametrically opposed entrenched positions of "sampling-good" and "sampling-bad".

Copyright is in a ridiculous state. The complete 1950's rock and roll and doo-wop eras can be reduced to a handful of riffs. The entire 12-bar Blues world would come to an end (or perhaps never have begun) if copyright were to be taken to the extremes advocated by some.

The haute-couture fashion industry survives quite well in the dog-eat-dog mix-and-copy market economy despite the counterfeiting and edge cases. They take the hit and move on, knowing that freshness and authority is their currency. We could learn something from it if we cared to open our minds.

The conversations necessary to solve it aren't happening though, because any time a cogent thought is expressed, it's drowned out by dismissive polemic.

Yes, I know I'm being subjective. No, I do not need it pointed out that my opinion is not likely 100% correct, I work on the assumption that I'm very likely somewhere between 13% and 87% correct and that I'm open to have my position shifted within that vast apparently unoccupied space between 100% in one direction and 100% in the other direction.

paying attention.

Sorry, don't mean to include everyone in my rant there. There has been some illuminating discussion, notably I found Eugene and Scott's interaction to be optimistic about seeking better understanding and finding balance.

Go down to a local music store (you know, with band instruments in it) and buy yourself a trumpet. Then go take private lessons for one month. That's about 4 lessons. Play what you've learned in that amount of time. Record it and listen or even better, ask your friends to give thier honest opinions of your playing. Next consider how long it would take to become a proficient enough musician to get paid for public performances in an orchestra. Also consider how much it might cost. Then think about what it would take to be a full time musician and to earn a living wage.

Considering all of this, how reasonable is it to compare the work of a sample artist to that of a musician?

To make what people are erroneously calling music, the sample artist spends a few hours sifting through recordings made by artists who spent lifetimes mastering their craft.

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Go to the metal supply shop and buy yourself a hunk of brass. Now go take metal working classes for a month and try to make a bowl using what you learned. Ask your friends what they think of your bowl. Consider how long it would take to become proficient enough to get paid for your bowls, or how much it would cost. Now think about what it would take to make trumpets instead of bowls and earn a living doing it.

To make what some people are considering art, the musician spends a few minutes blowing through a trumpet that took a craftsman a lifetime to perfect.

Standards vs Samples

I'm a jazz musician. I have an album that has some other jazz musician's songs / standards on it. A standard is a song that is so good jazz musiciians want to do their version of it for years to come. BUT WE PAY FOR THE PRIVELEDGE!!!! When you sample, pay the royalties. I used to own an intrument repair shop. I HAVE NEVER MET A RICH JAZZ MUSICIAN!!!! Why? because they usually don't have the money to sue who they need to. Why couldn't snoop dog pay the trivial amount of money (in comparison to what his profits are) to the people who own the legal copyright? I admire people who do the right thing. Those who steal area dime a dozen, and are going down in value fast.